How precise do I need to be in the language of my will?

Date: May 19, 2015

In the estate planning process, writing a will is one of the important aspects of making sure your assets will be distributed as you intend.

The words you use in the will have legal effect, so making sure you using correct language is important when you are constructing it. This is one of the main reasons individuals will have their will drafted by a dedicated wills and estates lawyer.

In a case before the Supreme Court of NSW, the precise language used in the will was a matter of dispute and resulted in the Judge having to decide who would get the estate of the deceased person.

The issue revolved around who exactly the deceased was referring to when he wrote which person would inherit his estate if he should die. The deceased left the whole of his estate to his mother, Mrs Edna Bates, and in the event that she predeceased him (which she did), to five legatees (totalling $50,000) and otherwise "the Redemptorist Monastery of Woodstock Street.

Except, as it turns out, there was no organisation by this name in existence. However, trustees for "The Fathers of the Congregation of the Most Holy Redeemer", who at one point in their history had a monastery in Woodstock Street in Mayfield, came forward as the group the man was referring to in the will.

This was disputed by the extended family of the deceased man. If there was no one to inherit the estate, the deceased would be declared to have died intestate and his property would have been distributed to his cousins as he was without spouse or issue at the time of death.

The Judge was asked to settle the dispute as to whether the trustees of "The Fathers of the Congregation of the Most Holy Redeemer" could claim it was the organisation to which the deceased intended his estate to be left even though the organisations name is not in the will.

Citing the case of Perrin v Morgan, the Judge found in favour of the trustees, as there was evidence that the deceased was a devout Catholic and had a long history of affiliation with"The Fathers of the Congregation of the Most Holy Redeemer". His Honour noted the deceased clearly did not intend his estate to go to the building itself.

In the Perrin case, the Judge stated the law gives effect to the intention of the deceased in the construction of their will and always "to put on the words used the meaning which, having regard to the terms of the will, the testator intended".

To get the precise wording of your will right, it is always best to consult with a qualified estate lawyer to avoid any future disputes.